B-173783.116, APR 1, 1975

B-173783.116: Apr 1, 1975

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MAY NOT RECEIVE PREMIUM PAY FOR STANDBY DUTY PERFORMED AT HIS HOME OR WITHIN 25 MILES OF HIS HOME BECAUSE NEITHER HIS WHEREABOUTS NOR HIS ACTIVITIES WERE SO NARROWLY OR SUBSTANTIALLY RESTRICTED AS TO BRING HIM WITHIN THE MEANING OF 5 U.S.C. SCHONBERGER - OVERTIME PAY FOR STANDBY DUTY AT HOME OR WITHIN APPROXIMATELY 25 MILES OF HOME: THIS DECISION IS ISSUED IN RESPONSE TO A REQUEST FOR A RECONSIDERATION OF THE ACTION TAKEN ON DECEMBER 16. THE CLAIMANT WAS ASSIGNED. ON THE DATES THAT THE CLAIMANT WAS ASSIGNED TO "GO TEAM" DUTY. HE WAS REQUIRED TO MAINTAIN A 2- HOUR RESPONSE TIME BETWEEN NOTIFICATION OF ACCIDENTS AND DISPATCH OF THE "GO TEAM.". ALL NTSB "GO TEAM" MEMBERS ARE PROVIDED WITH "BELL BOY" TYPE SUMMONING DEVICES.

B-173783.116, APR 1, 1975

CLAIMANT, AN AIR SAFETY INVESTIGATOR EMPLOYED BY NATIONAL TRANSPORTATION SAFETY BOARD, MAY NOT RECEIVE PREMIUM PAY FOR STANDBY DUTY PERFORMED AT HIS HOME OR WITHIN 25 MILES OF HIS HOME BECAUSE NEITHER HIS WHEREABOUTS NOR HIS ACTIVITIES WERE SO NARROWLY OR SUBSTANTIALLY RESTRICTED AS TO BRING HIM WITHIN THE MEANING OF 5 U.S.C. SEC. 5545(C)(1), AS IMPLEMENTED BY 5 C.F.R. SEC. 550.141.

CLAUDE M. SCHONBERGER - OVERTIME PAY FOR STANDBY DUTY AT HOME OR WITHIN APPROXIMATELY 25 MILES OF HOME:

THIS DECISION IS ISSUED IN RESPONSE TO A REQUEST FOR A RECONSIDERATION OF THE ACTION TAKEN ON DECEMBER 16, 1974, BY OUR TRANSPORTATION AND CLAIMS DIVISION DISALLOWING THE CLAIM OF MR. CLAUDE M. SCHONBERGER FOR PREMIUM PAY FOR STANDBY DUTY COVERING THE PERIOD FROM MARCH 1, 1974, THROUGH AUGUST 31, 1974, AS AN AIR SAFETY INVESTIGATOR EMPLOYED BY THE DEPARTMENT OF TRANSPORTATION, NATIONAL TRANSPORTATION SAFETY BOARD (NTSB), AND ASSIGNED TO ITS "GO TEAM" FOR INVESTIGATION OF CATASTROPHIC AVIATION ACCIDENTS.

THE RECORD REVEALS THAT DURING THE PERIOD INVOLVED, THE CLAIMANT WAS ASSIGNED, ON A WEEKLY BASIS, TO A "GO TEAM" MAINTAINED BY THE NTSB TO ASSURE THAT ITS INVESTIGATORS WOULD BE PREPARED TO LEAVE FOR THE SCENE OF TRANSPORTATION ACCIDENTS UPON SHORT NOTICE. ON THE DATES THAT THE CLAIMANT WAS ASSIGNED TO "GO TEAM" DUTY, HE WAS REQUIRED TO MAINTAIN A 2- HOUR RESPONSE TIME BETWEEN NOTIFICATION OF ACCIDENTS AND DISPATCH OF THE "GO TEAM." THIS 2-HOUR RESPONSE TIME REQUIRES THAT THE "GO TEAM" MEMBERS EITHER REMAIN IN THEIR LIVING QUARTERS WHILE ON STANDBY DUTY OR GIVE PROPER OFFICIALS SOME METHOD OF CONTACTING THEM QUICKLY ENOUGH THAT THEY CAN MEET THE 2-HOUR DEADLINE. ALL NTSB "GO TEAM" MEMBERS ARE PROVIDED WITH "BELL BOY" TYPE SUMMONING DEVICES, WHICH THEY MAY USE AT THEIR OPTION. WHEN ACCIDENTS OCCUR, THESE DEVICES SIGNAL THE "GO TEAM" MEMBERS, WHO ARE THEN REQUIRED TO CONTACT THE NTSB CONTROL CENTER. THESE DEVICES HAVE EFFECTIVE RANGES OF UP TO 25 MILES.

IN REQUESTING REVIEW OF THE DISALLOWANCE, THE CLAIMANT CONTENDS IN EFFECT THAT HIS STANDBY DUTY SHOULD BE CONSIDERED HOURS OF WORK IN VIEW OF THE RESTRICTIONS PLACED ON "GO TEAM" MEMBERS. IN 1944, THE SUPREME COURT DISCUSSED THE QUESTION OF WHETHER AN EMPLOYEE'S OFF-DUTY HOURS ARE SPENT PREDOMINANTLY FOR HIS OWN BENEFIT, IN WHICH CASE THEY ARE NOT COMPENSABLE, OR PREDOMINANTLY FOR THE BENEFIT OF HIS EMPLOYER, IN WHICH CASE THEY ARE COMPENSABLE. IN INTERPRETING THE FAIR LABOR STANDARDS ACT IN ARMOUR AND CO. V. WANTOCK, 323 U.S. 126 (1944), THE COURT STATED:

"OF COURSE AN EMPLOYER, IF HE CHOOSES, MAY HIRE A MAN TO DO NOTHING, OR TO DO NOTHING BUT WAIT FOR SOMETHING TO HAPPEN. REFRAINING FROM OTHER ACTIVITY OFTEN IS A FACTOR OF INSTANT READINESS TO SERVE, AND IDLENESS PLAYS A PART IN ALL EMPLOYMENTS IN A STAND-BY CAPACITY. READINESS TO SERVE MAY BE HIRED, QUITE AS MUCH AS SERVICE ITSELF, AND TIME SPENT LYING IN WAIT FOR THREATS TO THE SAFETY OF THE EMPLOYER'S PROPERTY MAY BE TREATED BY THE PARTIES AS A BENEFIT TO THE EMPLOYER. WHETHER TIME IS SPENT PREDOMINANTLY FOR THE EMPLOYER'S BENEFIT OR FOR THE EMPLOYEE'S IS A QUESTION DEPENDENT UPON ALL THE CIRCUMSTANCES OF THE CASE."

BY SUBSEQUENTLY ENACTED STATUTE, SPECIFICALLY THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED, NOW CODIFIED AT 5 U.S.C. SECS. 5542 AND 5545, CONGRESS IN EFFECT DEFINED THE SITUATION IN WHICH AN EMPLOYEE WHO IS REQUIRED TO REMAIN AT HIS DUTY STATION ON STANDBY DUTY MAY RECEIVE PREMIUM PAY. 5 U.S.C. SEC. 5545(C)(1) PROVIDES IN PART AS FOLLOWS:

"(C) THE HEAD OF AN AGENCY, WITH THE APPROVAL OF THE CIVIL SERVICE COMMISSION, MAY PROVIDE THAT -

"(1) AN EMPLOYEE IN A POSITION REQUIRING HIM REGULARLY TO REMAIN AT, OR WITHIN THE CONFINES OF HIS STATION DURING LONGER THAN ORDINARY PERIODS OF DUTY, A SUBSTANTIAL PART OF WHICH CONSISTS OF REMAINING IN A STANDBY STATUS RATHER THAN PERFORMING WORK, SHALL RECEIVE PREMIUM PAY FOR THIS DUTY ON AN ANNUAL BASIS INSTEAD OF PREMIUM PAY PROVIDED BY OTHER PROVISIONS OF THIS SUBCHAPTER, EXCEPT FOR IRREGULAR, UNSCHEDULED OVERTIME DUTY IN EXCESS OF HIS REGULARLY SCHEDULED WEEKLY TOUR. ***"

IN DEFINING THE PHRASE "AT, OR WITHIN THE CONFINES OF, HIS STATION" USED IN 5 U.S.C. SEC. 5545(C)(1), SUBSECTION 550.143(B) OF TITLE 5 OF THE CODE OF FEDERAL REGULATIONS PROVIDES:

"(B) THE WORDS 'AT, OR WITHIN THE CONFINES OF, HIS STATION', IN SEC. 550.141 MEAN ONE OF THE FOLLOWING:

"(1) AT AN EMPLOYEE'S REGULAR DUTY STATION.

"(2) IN QUARTERS PROVIDED BY AN AGENCY, WHICH ARE NOT THE EMPLOYEE'S ORDINARY LIVING QUARTERS, AND WHICH ARE SPECIFICALLY PROVIDED FOR USE OF PERSONNEL REQUIRED TO STAND BY IN READINESS TO PERFORM ACTUAL WORK WHEN THE NEED ARISES OR WHEN CALLED.

"(3) IN AN EMPLOYEE'S LIVING QUARTERS, WHEN DESIGNATED BY THE AGENCY AS HIS DUTY STATION AND WHEN HIS WHEREABOUTS IS NARROWLY LIMITED AND HIS ACTIVITIES ARE SUBSTANTIALLY RESTRICTED. THIS CONDITION EXISTS ONLY DURING PERIODS WHEN AN EMPLOYEE IS REQUIRED TO REMAIN AT HIS QUARTERS AND IS REQUIRED TO HOLD HIMSELF IN A STATE OF READINESS TO ANSWER CALLS FOR HIS SERVICES. THIS LIMITATION ON AN EMPLOYEE'S WHEREABOUTS AND ACTIVITIES IS DISTINGUISHED FROM THE LIMITATION PLACED ON AN EMPLOYEE WHO IS SUBJECT TO CALL OUTSIDE HIS TOUR OF DUTY BUT MAY LEAVE HIS QUARTERS PROVIDED HE ARRANGES FOR SOMEONE ELSE TO RESPOND TO CALLS OR LEAVES A TELEPHONE NUMBER BY WHICH HE CAN BE REACHED SHOULD HIS SERVICES BE REQUIRED."

CLEARLY SUBSECTIONS (B)(1) AND (B)(2) ARE NOT APPLICABLE IN THE PRESENT CASE. AS FOR SUBSECTION (B)(3), THE NTSB HAS NEVER DESIGNATED MR. SCHONBERGER'S HOME AS HIS DUTY STATION BUT EVEN IF IT HAD, OUR REVIEW OF PRIOR COURT OF CLAIMS AND COMPTROLLER GENERAL DECISIONS LEADS US TO CONCLUDE THAT NEITHER HIS WHEREABOUTS NOR ACTIVITIES WERE SO SEVERELY RESTRICTED AS TO MAKE HIS STANDBY DUTY HOURS COMPENSABLE UNDER 5 U.S.C. SEC. 5545(C)(1) OR ANY OTHER STATUTORY PROVISIONS.

THE CASE PRESENTED BY THE CLAIMANT IS SIMILAR TO THE FACTUAL SITUATION PRESENTED IN RAPP V. UNITED STATES, 167 CT. CL. 852 (1964). IN THAT CASE CERTAIN EMPLOYEES OF THE FEDERAL CIVIL DEFENSE ADMINISTRATION AND ITS SUCCESSOR AGENCY WERE REQUIRED TO SERVE PERIODICALLY AS DUTY OFFICERS IN THEIR HOMES DURING NONWORK HOURS TO RECEIVE TELEPHONE CALLS RELATING TO VARIOUS EMERGENCIES. THEY WERE NOT REQUIRED TO PERFORM OTHER TASKS. LATER THESE DUTY OFFICERS WERE REQUIRED TO PERFORM THIS STANDBY DUTY AT THE AGENCY'S CONTROL CENTER. THE COURT OF CLAIMS HELD THAT THE HOURS WHEN THE DUTY OFFICERS PERFORMED THEIR FUNCTIONS AT HOME DID NOT CONSTITUTE HOURS OF WORK FOR PURPOSES OF COMPENSATION, WHILE THE HOURS OF WORK PERFORMED AT THE CONTROL CENTER WERE PREDOMINANTLY FOR THE BENEFIT OF THE EMPLOYER AND WERE THEREFORE COMPENSABLE.

IN MOSS V. UNITED STATES, 173 CT. CL. 1169 (1965), A GOVERNMENT EMPLOYEE SUED TO RECOVER OVERTIME COMPENSATION ALLEGEDLY DUE HIM FOR TELEPHONE STANDBY DUTY TIME WHICH HE WAS ORDERED TO PERFORM IN HIS HOME FROM TIME TO TIME AFTER REGULAR DAYTIME WORKING HOURS AND ON WEEKENDS. THE COURT OF CLAIMS HELD THAT ALTHOUGH THE STANDBY DUTY WAS ORDERED AND APPROVED BY THE EMPLOYING AGENCY, THE DUTY DID NOT CONSTITUTE "HOURS OF WORK" UNDER SECTION 201 OF THE FEDERAL EMPLOYEES PAY ACT OF 1945, AS AMENDED (NOW 5 U.S.C. SEC. 5542A), SINCE EXCEPT FOR THE REQUIREMENT THAT THE CLAIMANT REMAIN WITHIN HEARING DISTANCE OF THE TELEPHONE, HE WAS OTHERWISE FREE TO ENJOY HIS NORMAL PURSUITS.

THE COURT OF CLAIMS RECENTLY CONSTRUED THE PHRASE "HOURS OF WORK" AS IT APPEARS IN 5 U.S.C. SEC. 5542 IN ALDRIDGE V. UNITED STATES, 202 CT. CL. 365 (1973), A CASE INVOLVING STANDBY DUTY PERFORMED BY CANAL ZONE POLICEMEN. THE COURT STATED IN PERTINENT PART:

"*** HOWEVER, IT IS MY OPINION THAT CONSIDERABLE VIOLENCE TO THE ENGLISH LANGUAGE WOULD BE DONE BY A HOLDING TO THE EFFECT THAT THE PLAINTIFFS WERE ENGAGED IN 'WORK' FOR THE GOVERNMENT WHILE THEY WERE ATTENDING CHURCH SERVICES, OR MAKING PURCHASES AT GROCERY STORES, OR WATCHING SHOWS AT THEATRES, OR VISITING THE HOMES OF FRIENDS, OR ENTERTAINING FRIENDS IN THEIR OWN HOMES, OR PURSUING HOBBIES AT HOBBY SHOPS, OR SWIMMING AT SWIMMING POOLS, OR PARTICIPATING IN SOCIAL ACTIVITIES AT SOCIAL CLUBS, OR PLAYING GOLF AT GOLF CLUBS, OR GETTING HAIRCUTS, OR BOWLING AT BOWLING ALLEYS, OR CARRYING ON IN THEIR OWN HOMES WHATEVER ACTIVITIES IN THE WAY OF RECREATION, DIVERSION, OR RELAXATION THAT MIGHT SUIT THEIR FANCY.

"THE PLAINTIFFS' SITUATION IS READILY DISTINGUISHABLE FROM THAT INVOLVED IN OTHER CASES WHERE EMPLOYEES WERE REQUIRED TO REMAIN AT A SPECIFIC PLACE DESIGNATED BY THE EMPLOYER WHILE AWAITING A POSSIBLE NEED FOR THEIR SERVICES, AND THE COURTS HELD THAT THE WAITING TIME, ALTHOUGH NOT PRODUCTIVE, CONSTITUTED COMPENSABLE HOURS OF WORK (E.G., ARMOUR & CO. V. WANTOCK, 323 U.S. 126 (1944); SKIDMORE V. SWIFT & CO., 323 U.S. 134 (1944); WINSBERG V. UNITED STATES, 120 CT. CL. 511, 98 F. SUPP. 345 (1951); FARLEY V. UNITED STATES, 131 CT. CL. 776, 127 F. SUPP. 562 (1955))."

OUR OFFICE HAS CONSIDERED NUMEROUS CLAIMS SIMILAR TO THAT OF MR. SCHONBERGER IN WHICH THE EMPLOYEE WAS REQUIRED TO PERFORM STANDBY DUTY AND WAS EITHER NOT RESTRICTED TO HIS RESIDENCE OR WAS RESTRICTED TO HIS RESIDENCE BUT WAS FREE TO PERFORM WHATEVER ACTIVITIES HE DESIRED WHILE AT THE RESIDENCE. UNDER SUCH CIRCUMSTANCES WE HAVE CONSISTENTLY HELD THAT THE EMPLOYEE IS NOT ENTITLED TO COMPENSATION BY VIRTUE OF BEING ON CALL. SUCH DUTY DOES NOT CONSTITUTE HOURS OF WORK, NOR DOES IT SATISFY THE REQUIREMENTS OF SUBSECTION 550.143(B)(3) OF TITLE 5 OF THE CODE OF FEDERAL REGULATIONS. SEE B-167742, SEPTEMBER 9, 1969; B-144675, JANUARY 19, 1961; B-173899, SEPTEMBER 27, 1971; B-180036, MAY 20, 1974; B-180927, AUGUST 20, 1974; B-170264, DECEMBER 21, 1973; B-160475, JANUARY 27, 1967.

ACCORDINGLY, THE SETTLEMENT DISALLOWING MR. SCHONBERGER'S CLAIM IS HEREBY SUSTAINED.